Fundamental Rights-Constitution Article 12(1)-Equality and discrimination with reference to recruitment and promotion.

The post of International Relations Manager was created by upgrading Petitioner's present post. He had beenrecommendedforappointment by a duly constituted panel of high ranking -officialsincludingtheConsultanthimself-afterinternetadvertisement. The fact that he lacked a part of the stipulated experience at the time of hisapplicationshouldnothavestood in the way. It was not an insuperable obstacle. In any event the 13th Respondent who wasappointedinpreferencetohim had no experience at all. Further the avowed policy of Air Lanka was tofillsuchvacancies,tothemaximumextentpossible, by internal candidates. Yet the Petitioner was not only denied his promotion, but he nowfindshimselfcondemnedin these proceedings by the very management that took steps towards creating a post with a view to promoting him.The allegations of incompetence, inefficiency andlackofresponsibilitylevelledagainstthePetitionerarewithoutfoundation.The Petitioner had a legitimate expectation of being appointed International Relations Manager.

The 1st Respondent had a legitimate interest and a public duty inensuringthatthebestcandidatewasappointed.Thesalutary procedures and provisions for doing so were totally disregarded and the 13th Respondent wasappointedforreasonsthat had no rational connection with the object of appointing the best qualified person. The Petitioner was consequentlynotonly treated unequally, but also offensively discriminated against. The discrimination was both unwarranted and invidious.There was no vacancy advertised by Air Lanka in respect of which the 13thRespondent could have made an application. Hehassecured his appointment as InternationalRelationsManagerotherwisethanthroughtherecognizedprocedureforsuchrecruitment. There is no justification for making such appointments by private negotiation, underaveilofsecrecy.The13thRespondent does not have the basic requirements necessary for appointment as aManager,GradeM.1.Theappointmentdepended upon the violation of the Petitioner's constitutional right to equality by thedemonstrationofunduepartialitytowards the 13th Respondent. I have no hesitation, therefore, in holding that his appointment is invalid. I directthattheappointment of the 13th Respondent be terminated forthwith.

Per Wijetunga, J."The principle of equality applies from the stage of one's recruitment to the statesectorrightuptotheendofone'scareer. It applies to the ever important matter of promotions too. This Court has, in dealing withtheequalityprovisionsof the Constitution, insisted that while there should be proper schemes of recruitment andpromotion,theirimplementationshould not be tainted by caprice, bias or prejudice. Favouritism on the one hand or the evil eye ontheother,necessarilymilitate's against the very concept of equality and should, therefore, be abhorred.Theremust,inthepublicinterest,always be honesty, openness, and transparency in regard to executive or administrative acts.APPLICATION for relief for infringement of fundamental rights.

02 June, 1994.WIJETUNGA, J.The Petitioner who is the Senior International Relations Executiveofthe1stRespondent,AirLankaLtd.(AirLanka)complains of the violation of his fundamental rights guaranteed by Article 12 (1)oftheConstitutionbyreasonoftheappointment of the 13th Respondent to the post of International Relations Manager.The Petitioner had joined Air Lanka on 16.11.88 as International Relations Executive, a post in Grade E IV of the cadre.Thevacancy had been duly advertised in the newspapers and the Petitioner claims that he wasselectedfromamonghundredsofapplicants, after several interviews heldbydifferentpanels.HehadthereafterbeenpromotedSeniorInternationalRelations Executive, Grade E V, on or about 20.12.89. He holds a Bachelor of Arts degree in GovernmentfromtheUniversityof Essex and a Master of Arts degree in International Affairs from Columbia University. ThePetitionerclaimsthatinorabout October, 1992, he made a request that his position as Senior International Relations Executive be upgradedtoManagerlevel and in response to the said request the Consultant, InternationalRelationsandLegal('Consultant')hadaStaffVacancy Notice dated 23.11.92 (P3) published, inviting applications on or before 7.12.92 from confirmed staff of theCompanyfor the said post. The vacancy was to be filled by internal recruitment. One of the requirements wasfiveyearsexperienceat Air Lanka, out of which two years should have been in the Senior Executive (E V) grade. The Petitioner duly submittedhisapplication through the Consultant, who was his head of department, and wasinterviewedon13.1.93byapanelofhighranking officials constituted for the purpose. He was the only applicant interviewed. On orabout23.2.93,thePetitionercame to know through the Senior Manager, Human Resources Development (Human ResourcesManager)thatthoughtheinterviewpanel had recommended his appointment, the Board of Directors at the time comprising the 2nd to 6th Respondents, haddecidedto defer the said appointment. The Petitioner then handed over a letter of protesttothe2nd Respondent,dated2.3.93(P5).The Secretary to the Board of Directors informed him on 22.3.93 that theBoardwouldmeethimataBoardMeetingscheduled for 25.3.93, but the said meeting did not take place. The Secretary's subsequent intimation to the Petitionerthathis case would be taken up at the next Board Meeting also didnotmaterialise.Onorabout6.4.93thePetitionerwasinformed by the Consultant that the Board was considering appointing the 13th Respondent to the said post. Heinquiredfromthe Petitioner whether in the circumstances he would wish to be transferred to anotherdepartmentasaSeniorExecutive.When the Petitioner indicated that he did not favour such a course of action, he wasaskedbytheConsultantwhetherhewould like a Manager-level position in either theCorporatePlanningorMarketingDivisions.Thissuggestiontoowasrejected by the Petitioner who indicated to the ConsultantthathewasinterestedonlyinthepostofInternationalRelations Manager, since this was thepostwhichwasinkeepingwithhisqualifications,experienceandexpertise.Thereafter, he handed over a letter dated 24.4.93 (P6) to the Consultant, complaining against the treatmentthatwasbeingmeted out to him and requesting him to inform the 2nd Respondent to deal with the matter in accordance withestablishedandnormal administrative procedures. Despite the protests of the Petitioner, the 13th Respondent was appointed tothepostofInternational Relations Manager on or about 3.5.93.The Board of Directors of Air Lanka was reconstituted in or about May, 1993. The Petitioner made a fresh appealtothenewBoard of Directors comprising the 6th to 11th Respondents. He also made this application to Court in terms of theprovisionsof Article 126(2) of the Constitution.In response to the Petitioner's application, the 1st to 6th Respondents in their objections took upthepositionthatAirLanka was not an instrument and/or agent of the State and that the Petitioner was not entitled to maintainthisapplicationas the alleged acts or omissions complained of do not fall within thephrase'executiveoradministrativeaction.'Theyfurther stated that the appointment of the 13th Respondent was proper, valid in law and not in violation ofanyfundamentalright. With regard to the circumstances leading to the appointment of the 13th Respondent,affidavitsweresubmittedfromthe former Chairman, a former Director and the Human Resources Manager. An affidavit from the Consultant was also submitted.

The 7th to 11th Respondents who are the Chairman and members of the new Board of Directors (the6thRespondentwhowasaDirector of the former Board being a member of the present Board as well), statethatatthetimetheytookofficeasDirectors of Air Lanka, the contract of employment of the 13th Respondent had already been made and he had assumed officeasInternational Relations Manager. They submit that they were advised that they are bound by the saidcontract.Theyfurtherstate that they had not taken a decision in regard to the appeal made to the new Board ofDirectorsbythePetitionerasthis application was pending before Court. It is their submission that the decision not to promote thePetitionerdoesnotamount to an actionable violation of the Petitioner's fundamental rights entitling him to reliefunderArticle12oftheConstitution.

The 13th Respondent admits that he assumed duties as International RelationsManageron3.5.93.Hestatesthathewasadmitted and enrolled as an Attorney-at-Law in November, 1989. In 1990, he became a graduate student at the Institute ofAirand Space Law at McGill University, Canada, his academic and professional qualifications havingbeenconsideredsufficientto exempt him from the requirement of a bachelor's degree. The course wasoftwoyearsdurationandhewasawardedaMaster's degree.Prior to being appointed International Relations Manager, he was first interviewed by the Consultant andlaterbyapanelcomprising the 2ndRespondent, then Chairman of Air Lanka, the Human Resources ManagerandtheChiefFinancialOfficer.Their recommendations were approved by the Board of Directors, subject to his appointmentbeingonacontractbasisandlimited to a period of two years initially. He denies that he has been unduly favoured and states thathisappointmenthasbeen made on merit.The 13th Respondent points out that the Petitioner's academic qualifications areofageneralnatureandnotspeciallyoriented to aeronautical law or organization, that the Petitioner is not an Attorney-at-Lawandthathealsolackedtheminimum 5 year employment qualification with Air Lanka. He submits that he hasbeenadvisedthatthepetitiondoesnotdisclose grounds entitling the Petitioner to relief under the provisions of Article 12 of the Constitution.Although the learned Deputy Solictor-General, at the commencement of his argument, gave indications thathewouldmaintainthat the acts of Air Lanka did not constitute executive or administrative action, he withdrew from pursuing thequestionofjurisdiction and confined himself to the facts.Counsel for the other respondents too made no serious attempt to persuade the Court thattheactscomplainedofdidnotamount to executive to administrative action within the meaning of Articles 17 and 126 of theConstitution.Inanyevent,this question has been dealt with exhaustively by this Court in Rajaratne v. Air Lanka Ltd., (1) and I see no reason totakea different view.

I have already set out the sequence of events leading to the exclusion of the Petitioner fromappointmentasInternationalRelations Manager.Although the former Board of Directors failed to enlighten this Court of the circumstances in which the 13th Respondentcameto make his application for this post, learned President's Counsel for the 7th to 11thRespondents who aremembersofthepresent Board of Directors, with exemplary correctness, submitted an affidavit on 7.3.94 from the presentCompanySecretaryand Secretary to the Board of Directors, together with copies of certain documents relevant to this matter.It appears from the material so furnished that one Tissa Abeyratne, the former International Relations Manager of AirLanka,had addressed a letter dated 21.11.91 (7 R4) to the former Chairman, the 2nd Respondent intheseproceedings,enclosingaresume of the 13th Respondent's career, while the latter was still a student at Mc Gill University, recommending him"foramanagement position.....in the marketing - legal field." By letter dated 25.1.92 (7R5) addressed to TissaAbeyratnebytheConsultant, to whom the said letter had been referred, the Consultant has stated, inter alia, as follows:"Chairman passed on to me your letter to him regarding Lasantha Hettiarachchi. We discussed the matter and Iindicatedto him that the applicant shows promise and should be invited over for a chat when he returns to Sri Lanka. Itappearsfrom your letter that he will be returning to Sri Lanka (if he has not done so already) after concluding his Masters.I agree with you totally that he deserves a very close look for he shows signs of a person whocouldcontributeverymuch to Airlanka. I would, therefore, suggest that you request him to contact me in Colombo and we couldthenhaveapreliminary chat with a view to finding out where exactly he could serve Airlanka best. He seems to have qualificationswhich would serve both the Legal Division as well as International Relations. You have also referredtoaMarketing-Legal field. Perhaps you could amplify on that."Although the letter refers to Lasantha Hettiarachchi, the 13th Respondent, as the "applicant", he had made no applicationatthat stage. The 13th respondent's ?application' (7R6) is as follows :-"Lasantha Hettiarachchi

437891101/1 - 3/1 S.G.' s

Quarters

Kew Road, Colombo 2.26 March, 1993.Mr. Dunstan Jayawardene

Chairman/Managing DirectorAirlanka Ltd.

York Street,

Colombo 1.

Sri Lanka.Dear Mr. Jayawardene, Further to our telephone conversation and the subsequent meeting I had with Mr. Shibly Aziz, I would like tosubmitan application to be considered for the post of manager in the International Relations department of Airlanka. In the course of my meeting with Mr. Aziz, he explained to me thepresentstructureoftheInternationalRelations department, the possible entry level for a person with my qualifications andexperience,andthetypeofemolument package I could expect from Airlanka. I have come back to Sri Lanka with the intention of staying. I am prepared to give the best ofmybestyearstoour national airline if presented with the proper opportunity and the commensurate compensation package. I am looking forward to meeting with you and further discussing the possibility of working in International Relations at Airlanka. A copy of my resume and copies of two letters of recommendation are submitted herewithforyourperusal.I would be very grateful for an early response on this matter.Thank You.

Yours sincerely,

(Signature)

The affidavit of the Human Resources Manager indicates that in accordance with the directive ofthethenChairman/ManagingDirector, the 13th Respondent was called for an interview on 31.3.93 with theChairman/ManagingDirector,ChiefFinancialOfficer and the Human Resources Manager and his application "was accordingly recommended to the Board on a 02 yearscontracton a Rs. 20,000/-monthly pay plus Rs. 2190/- entertainment allowance with official transport from home to office inlieuofreimbursement of 30 gallons of fuel." The reason given for the post not being advertisedinthenewspapersisthat"therecruitment was done only to find a person for a limited period of time."It was the submission of the learned Deputy Solicitor - General' who appeared for the former Board ofDirectors,thatwhathe called the "non appointment" of the Petitioner and the appointment of the 13th Respondent were separateissuesandthatthere was no nexus between them. He contended that if the matter was so viewed, thequestionofdiscriminationwouldnotarise.

But the material before us is to the contrary. The letter of Tissa Abeyratne dated21.11.91(7R4)addressedtothethenChairman/Managing Director was without doubtasteptowardssponsoringthe13thRespondent,whowasyetatMcGillUniversity, for a suitable position at Airlanka. The Consultant's letter to Tissa Abeyratne dated 23.1.92(7R5)showsthatdiscussions had already been held between the Chairman and the Consultantastothepossibilityoffindingasuitableposition for him. The Consultant, even at that stage, had expressedtheviewthatthe13thRespondent"seemstohavequalifications which would serve both the Legal Division as well as International Relations". Theapplicationofthe13thRespondent dated 26.3.93 (7R6) refers to a telephone conversation between him and the Chairman and a subsequent meetingthathe had with the Consultant, further to which he was submitting his 'application'forthepostofManager,InternationalRelations.In the meantime, the Petitioner had beeninterviewedon13.1.93byapanelofhigh-rankingofficialsincludingtheConsultant, who had recommended him for the said post. The Petitioner had learntonorabout23.2.93throughtheHumanResources Manager that although the interview panel had recommended his appointment, the Board of Directors at that timehaddecided to defer the same. He had even handed over a letter ofprotest(P5)dated2.3.93.Itwason6.4.93thatthePetitioner had learnt that the Board was considering appointing the 13th Respondent.The Consultant's affidavit too indicates that a few months after the Petitionerwasrecommendedforthesaidpost,theformer Chairman had asked him to meet and assess the 13th Respondent and ascertain his suitability to join the DepartmentasManager. He further states that he met the 13th Respondent "a few times" and "was satisfied . . . that he wouldbesuitablefor a management position at International Relations and thereafter conveyed (his) views to the then Chairman"andthathebelieves that "the former Chairman had also interviewed him (the 13th Respondent) and come to the same conclusion."Thus it is seen that the Consultant as well as the Chairmanhadsatisfiedthemselvesasregardsthe13threspondent'ssuitability for the post even before he submitted his 'application'. It is futile, therefore, to suggest thattherewasnonexus between the failure to appoint the Petitioner and the appointment of the 13thRespondent:ThelatterdisplacedthePetitioner from a position for which he had earlier been regarded as qualified. The appointment of the13thRespondentwasnecessarily conditional upon the removal of the Petitioner as a competitior.

The failure to appoint the Petitioner is sought to be justified by the former Board on thebasisthatthePetitionerwasunsuitable for management responsibilities at that point in time. The Chairman in his affidavit states that herecallsthatat the Board Meeting at which the recommendation to promote the Petitioner was discussed, the Board unanimouslydecidednotto take action on the recommendation as in its view the Petitioner was not yet ready for a promotion. He further statesthatit was the view of the members of the Board that "steps be taken to look for someone suitable, evenfromoutsideAirlanka,since the only applicant who had applied pursuant to the Internal Staff Vacancy Notice was the Petitioner himself."We do not know whether the Chairman at the time, namely the 2ndRespondent,madetheBoardofDirectorsawareofthelurking, albeit shadowy, presence of the 13th Respondent in Air Lanka from 1991/ 1992, as regards whose suitability forthispost he had already formed a favourable opinion. That would have obviated the necessity "to look for someonesuitable".Theminutes of that Board Meeting, which are so vital to the matter under consideration, have curiouslynotbeenfurnishedtous.

The alleged unsuitability of the Petitioner has to be examined in the light of certain other averments in paragraphs 6 and7of the former Chairman's affidavit. He says that within the last yearofhistenureasChairman/ManagingDirector,theConsultant brought to his notice and that of Mr. Wijayatilake, the 4th Respondent, who was anotherfellow-Director,certaindifficulties he experienced, due to constraints of time, of effectively supervising and managing the work of thisDepartmentand he requested him to provide him with a capable Manager to take over some of his responsibilities, leavinghimtoservein the capacity of a Consultant for which he was originally recruited. He discussed this matter with several seniorManagersof Air Lanka who were familiar with the work performed by the International Relations Department, including the formerChiefMarketing Officer as well as the present Chief Marketing Officers, and it wasthegeneralconsensusthatsomeonefromoutside the International Relations Department should be brought in at managerial level, since the most senior person intheInternational Relations Department, namely the Petitioner, was unsuitable for management responsibilitiesasyet.Hesaysthat he as well as Mr. Wijayatillake fully concurred with these views, since both of them had first handexperienceofthework and disposition of the Petitioner.

Mr. Wijayatilake too, in his affidavit, states with specific reference to paragraphs 6 and7oftheChairman'saffidavitthat it sets out correctly the factual position and the conclusions which the Chairman and he had reached with regard tothePetitioner.If, therefore, the general consensus was that the Petitioner wasnotsuitableforthepostofInternationalRelationsManger, one fails to see why the management decided to engage in the futile exercise of invitingapplicationsfromwithin,being well aware that the only likely internal candidate for that position would bethePetitionerhimself.Moreover,asspecifically admitted by the former Chairman and the Board ofDirectorsintheirstatementofobjections,itwasthePetitioner who, in or about October, 1992, requested thathispositionasSeniorInternationalRelationsExecutivebeupgraded to Manager level and it was in response to that requestthattheConsultanthadaStaffVacancyNotice(P3)published, in terms of which the said vacancy was to be filled by internal recruitment.

On the other hand, if the Board was not satisfied as regards the suitability of the Petitioner and was really lookingforamore qualified person for this important post, it should in the best interests of AirLankahavecalledforapplicationsfrom outside as well, without havingrecoursetowhatnowappearstobeashamrecruitmentprocedurebyinternaladvertisement.Nor does the matter end there. The interview panel that recommendedthePetitionerforpromotionhadconsistedoftheConsultant himself (who hadfunctionedasthePetitioner'sHeadofDepartmentsinceFebruary,1990),theTrainingCoordinator of Air Lanka, the Financial Advisor to the Chairman and a representative of the Ministry of PolicyPlanningandImplementation. There is no gainsaying that the Consultant, directly under whom the petitioner worked,wouldhavehadthebest opportunity of assessing the Petitioner's suitability for this post. As already mentioned, itwastheConsultantwhohad taken steps to upgrade the Petitioner's post by callingforapplicationsfromwithin,knowingverywellthatthePetitioner would be the obvious choice. The Petitioner's application (P4) had been submitted through the Consultanthimself,who had recommended the same. But, the Consultant now says in his affidavit of 12.8.93 that some very senior Managers atAirLanka and the then Chairman and Mr. Wijayatillake, Director, were not satisfied with the Petitioner'sperformanceandthathe had, on many occasions, informed the Petitioner of these criticisms andhadadvisedhimtoremedyhisshortcomings,stating that he too had observed them.If that was the Consultant's own assessment of the Petitioner, I fail to see why he should have taken stepstoupgradehispost and even recommend him for appointment, particularly if, as he now claims, he was awarethattheChairman"wasverydissatisfied with him (the Petitioner) "and he too shared theconcernsoftheChairmanandMr.WijetillakeaboutthePetitioner's inadequacies.The Petitioner, in his counter affidavit dated 1.9.93, replying to the affidavits of theRespondents,categoricallydeniesthat during his service he had ever been faulted or found wanting in his work. He further dismisses as falseandmalicious,the allegations that he was unsuitable for management responsibilities,orlackedcompetenceandconfidence,orshowedinability to effectively handle situations which required quick responses and reactions, or was carelessandirresponsible.The Petitioner also points out that he received a promotion after one year in service and had earned his incrementsontime- which is inconsistent with the position that he was inefficient or incompetent or that his work and conduct was in any way-unsatisfactory and that on no occasion had there been any adverse comments in regard to the performance of his duties.

If the Petitioner was found wanting, as it is now alleged, one would have expected the management to bring thosematterstothe Petitioner's notice in writing and even warn him suitably. On the contrary, the management not only gave him apromotionbut even took steps to upgrade his present post.The Petitioner further states that during his career at Air Lanka he has been nominated by the Chairman, withtheagreementof the Consultant, to attend about 35 airline meetings and about 30 bilateral (government-to-government)meetings.EveninJuly 1993, after the 13thRespondent had assumed duties, the Petitioner hadaccompaniedtheConsultantforabilateralmeeting in Japan.The former Chairman, in his affidavit, states that notwithstanding the Petitioner's good academic background whichfurnishedhim with an aptitude for research, he had noticed in him a "lack of competence and confidenceinotherareasrelatingtointernational relations and an inability to effectively handle situations which required quick responses andreactions"andthat the Petitioner "often found it difficulttobringtosituationsapragmaticapproach,amajordisadvantageinsuccessfully handling communications or negotiations with other airlines and aviation authorities." Healso"foundhimattimes careless or irresponsible in matters entrusted tohim."HesaysthathehaddiscussedthesematterswiththeConsultant who informed him that he was also mindful of them and that he was trying his besttoassistthePetitionertoovercome some of these difficulties, though he was unsure whether these could be remedied in a short time. Inthemeantime,the Chairman says, "we decided to give him as much exposure and experience so that he could overcome them."

If so, one wonders whether such enormous expenditure of public funds in allegedly helping some one to overcomehispersonaldeficiencies can be justified? The Government of Sri Lanka admittedly holds approximately 95% shares of AirLankaandeventhe other shareholders are state sector institutions such as the Bank of Ceylon, People's Bank, National SavingsBank,SaluSala and the National Insurance Corporation. The material furnished bytheRespondents,however,doesnotwarrantthiscondemnation of the Petitioner. He was obviously included over and over again in the delegations because hehadapositivecontribution to make and not for altruistic purposes.

According to the promotion/recruitment procedure at Air Lanka (P7), where the level of a post tobefilledisthatofaDepartmental and Sectional Manager, the specific approval of the Chairman/Managing Director must beobtainedtofillsuchvacancy. One can, therefore, assume that the steps taken to fill the post ofInternationalRelationsManagerbyinternalrecruitment had the sanction of the Chairman/Managing Director. It appears from the affidavit of the Human ResourcesManagerthat, though the panel which interviewed the Petitioner had recommended him for selection,specialapprovalwasnecessaryfor their recommendation as the Petitioner lacked the stipulated five years experience. That apparently wasthereasonwhythe matter was brought to the notice of the Board at all.

It is admitted that the Petitioner had the requisite two years experience in the Senior Executive Grade (E V).Atthetimeof his application, however, he had completed only four years service at Air Lanka. The subsequentaffidavitoftheHumanResources Manager indicates that the practice had been for Board approval tobeobtainedinsuchsituations and,suchapproval was ordinarily granted. In fact, a recommendation made in regard to a post of Manager (M 1) by the same panelwhichinterviewed the Petitioner had also been put to the Board for their approval, since the personrecommendedhadlackedthestipulated experience of two years in the Senior Executive Grade (E V), and the Board had approvedhisappointmentatthevery meeting at which the recommendation in respect of the Petitioner was turned down.ThefactthatthePetitionerwasshort of the stipulated experience by one year at the time of his application would, therefore, not have stoodinhisway the management itself does not seek to justify his non- appointment on that basis.

I shall now consider another aspect of the matter before us. The Consultant admits the receiptofthePetitioner'sletterdated 24.4.93 (P6), which refers to two meetings between the Consultant and the Petitioner, both said to have beeninitiatedby the Consultant, which have a direct bearing on the circumstances surrounding the non-appointment of the Petitioner tothepost in question. The Petitioner recapitulates the suggestions said tohavebeenmadebytheConsultantatthesetwomeetings in considerable detail. He requests the Consultant "to inform the Chairman of the contents ofthisletterandtotransfer to him (his) request that this matter be handled through normal administrative procedures such aswereappliedatthe time of (his) recruitment".The Consultant, in his affidavit dated 12.8.93, dealing with the said letter states at paragraph 11 as follows:"I pointed out to the Petitioner that the said letter contained inaccuracies particularlyrelatingtotheofferofalternative posts to the Petitioner and the role attributed to Mr. Tissa Abeyratne (as Mr. Abeyratne did notrecommendthat Mr. Hettiaratchi should be taken to Airlanka). I requested the Petitioner to correct themasotherwiseIshallhave no alternative but to send my comments to the ChairmanwhenforwardingP6.ThoughthePetitioneragreedtoconsider this and revert to me, he has still not done so."The Chairman and Directors of the former Board (other than the 6th Respondent) went out of office in May, 1993. Itdoesnotappear that the letter P6 was forwarded even to the ChairmanofthepresentBoardofDirectors,withorwithouttheConsultant's comments. Despite the Consultant's observations to the contrary, the letter 7R4 of21.11.91showsthatTissaAbeyratne did not in fact recommend the 13th Respondent to the then Chairman for a management position at Air Lanka.P6 certainly was not a letter that could have been leftuncontradictedifitcontained"inaccuracies",judgingbyitscontents which were damaging not only to the Consultant, but to the management itself. But yet,therethematterremains.One cannot, therefore, help but accept that it sets out accurately what wentonbehindthescenes,particularlyasthePetitioner stands vindicated in regard to the matter of Tissa Abeyratne's recommendation regarding the 13th Respondent.So also, the letter of protest dated 2.3.93 (P5), handed over by the Petitioner to the then Chairman, thereceiptofwhichhas been admitted, which states, inter alia, as follows :" . . . . . . I have no reason to think that the decision to defer my promotion wasduetoanydeficienciesinmyeducational background, sense of responsibility, loyalty to the company, discharge of duties or staff relations. If oneor more of these deficiencies was identified, I am sure that it would have been broughttomynoticeatsometimeduring the past few years . . . ."There again, the management chose not to respond, thus giving credence to the Petitioner'sdenialoftheallegationsnowmade against him.It would be relevant at this stage to look at the qualifications and experience of the 13th Respondent. He hadobtainedhisMaster's degree from McGill University in October, 1992. His experience as an Attorney-at-Law inSriLankahadbeenfromNovember, 1989 to October, 1990, a period of less than one yearand his workasalawyerdidnotinvolveaviationorrelated matters. He had no working experience whatsoever with any Airline.In regard to the suitability of the 13thRespondent for appointmenttothispost,thethenChairmanstatesthattheConsultant who was requested to assess his suitability gave a very favourable assessment, which the Consultantinformedhimwas arrived at after several meetings which he had with the 13th Respondent.

The Consultant, however, states that he met the 13th Respondent a few times and was satisfied that he would besuitablefora management position at International Relations.The then Chairman further states that he too met the 13th Respondent and was veryfavourablyimpressedwithhisacademicqualifications and his overall personality and disposition.

From the application of the 13th Respondent, it appears that he has had a meeting with the Consultant prior tohisapplyingfor the post. He goes on to say that he was lookingforwardtomeetingwiththeChairmanandfurtherdiscussingthepossibility of working in International Relations.In his affidavit, the 13th Respondent states that prior to his appointment he was interviewed firstbytheConsultantandlater by an interview panel comprising the then Chairman, the Human Resources Manager and the Chief Financial Officer.The opportunities available to the management to assess the suitability of the 13th Respondent werethuslimitedtothosementioned above.

The Human Resources Manager, by way of justification of the procedure adopted in appointing the 13th Respondent, statesthat"there are instances when the services of officers are needed to meetshorttermmanpowerrequirements,theyhavebeenemployed on contract basis without calling for applications for such posts in the press. Suchstepshavebeentakenonlywhen the services of highly specialised personnel such as pilots, engineers andsimilarprofessionalsareneededduetoexigencies of service". He further states that "the post was not advertised in the press since the recruitment was doneonlyto find a person for a limited period of time."One cannot see the logic of his reasoning. Initially, steps were taken by theConsultanttoupgradethepostofSeniorInternational Relations Executive held by the Petitioner to that of International Relations Manager, at the instanceofthePetitioner himself and such appointment was sought to be made by internal recruitment.Theproposalwasnotintendedtoincrease the cadre in the Department. In terms of the manual on promotion/recruitmentprocedure(P7),itisAirLanka'spolicy that "to the maximum extent possible, vacancieswithintheapprovedestablishmentshallbefilledbyinternalcandidates". The Petitioner in his counter affidavit states that it wastheintentionoftheConsultantthatwiththePetitioner's appointment to the upgraded post of Manager (M 1), the post that he held (at E V) would be abolished.

If the Board was not satisfied with the recommendation made by the interview panelinregardtotheappointmentofthePetitioner, the only legitimate course open to it was to call forapplicationsfromexternalcandidates,throughproperadvertisement. There is no justification whatsoever for making such appointments by privatenegotiation,underaveilofsecrecy. Had it not been for the very proper step taken by learned President's Counsel for the presentBoardofDirectors,even the circumstances surrounding the 'application' of the 13th Respondent would still have remained a mystery. We nowknowthat while the 13th Respondent was yet a student at McGill University, moves were afoot to find him a suitable placeatAirLanka. His appointment to the post in question was purely on the basis of his academic andprofessionalqualifications,intotal disregard, from a management point of view, of the sine qua non of experience.The stipulated qualifications and requirements for a Sectional Manager, Grade M I at Air Lanka are:Internal (Promotions) - 5 years experience at Air Lanka out of which 2 years should be in Senior Executive (E V) grade.External (Recruitment) - A degree from a recognized university and 5 years managerial experience.The emphasis placed on experience is thus quite evident.The Petitioner's complaint is that his fundamental right to equality within the meaning of Article 12(1) of theConstitutionhad been violated by the 1stand/or 2nd to 6th Respondents. The principle ofequalityappliesfromthestageofone'srecruitment to the state sector right up to the end of one's career. It applies to the ever importantmatterofpromotionstoo. This Court has, in dealing with the equality provisions of the Constitution, insisted that while there should beproperschemes of recruitment and promotion, their implementation should not be tainted by caprice, bias orprejudice.Favouritismon the one hand or the evil eye on the other,necessarilymilitateagainsttheveryconceptofequalityandshould,therefore, be abhorred. There must, in the public interest, always behonesty,openness,andtransparencyinregardtoexecutive or administrative acts.

The Petitioner, as is evident from the circumstances referred to above, hadalegitimateexpectationofbeingappointedInternational Relations Manager. The post had been created by upgradinghispresentpost.Hehadbeenrecommendedforappointment by a duly constituted panel of high ranking- officials, includingtheConsultanthimself.Thefactthathelacked a part of the stipulated experience at the time of his application would not, as shown above, have stood inhisway.It was not an insuperable obstacle. In any event, the person appointed inpreferencetohimhadnoexperienceatall.Further, the avowed policy of Air Lanka was to fill such vacancies, to the maximum extent possible, byinternalcandidates.Yet, the Petitioner had not only been denied his promotion, but he now finds himself condemned in theseproceedingsbythevery management that took steps towards creating a post with a view to promoting him.

It must be emphatically stated that the material furnished to this Court by the management does not, in theabsenceofanycontemporaneous record showing that the Petitioner had been found wanting in any respectandthatappropriateactionhadbeen taken in that behalf, justify the condemnation of the Petitioner. Theinabilityofthemanagementtofurnishsuchdocumentary evidence inevitably leads to thepresumptionthattherewasnosuchmaterialavailable.EvenafterthePetitioner categorically denied all such allegations,bywayofcounteraffidavit,characterisingthemasfalseandmalicious, and in the face of his assertion that there had been no occasion for any adverse comments ontheperformanceofhis duties, the Human Resources Manager in his counter affidavit of 23.9.93, could not contradictthePetitioner,althoughhe made some inconsequential observations in regard to other matters of much less relevance and importance.

The allegations of incompetence, inefficiency and lack of responsibility levelled against thePetitionerarethuswithoutfoundation. They evidently are ex post facto explanations in an attempt to justify the arbitraryandirrationalmannerinwhich the 13th Respondent's appointment was made. They clearly show that the Petitioner was looked uponwithanevileye,whereas the 13th Respondent was regarded with peculiar favour. The 1stRespondent had a legitimateinterestandapublicduty in ensuring that the best candidate was appointed. The salutary procedures and provisionsfordoingsoweretotallydisregarded and the 13th Respondent was appointed for reasons that had no rational connection with the objectofappointingthe best qualified person. The Petitioner was consequently not only treated unequally,butalsooffensivelydiscriminatedagainst. The discrimination was both unwarranted and invidious.I, therefore, hold that the Petitioner's fundamental rights under Article 12(1) of the Constitutionhavebeenviolatedasaforesaid.This brings me to the question of validity of the 13th Respondent's appointment. TherewasnovacancyadvertisedbyAirLanka in respect of whichthe13thRespondentcouldhavemadeanapplication.HehassecuredhisappointmentasInternational Relations Manager otherwise than through the recognized procedure for such recruitment. He does notevenhavethe basic requirements necessary for appointment as a Manager, Grade M 1. The appointment depended upon the violation ofthePetitioner's Constitutional right to equality by the demonstration of undue partiality towards the 13th Respondent. Ihaveno hesitation, therefore, in holding that his appointment is invalid. Accordingly, Idirectthattheappointmentofthe13thRespondent be terminated forthwith.

Learned President's Counsel for the 7th to 11th Respondents submitted that even in the event of the Court holding thattherehad been discrimination, it should still refrain from appointingthePetitionertothepostinquestion.Itwashiscontention that in the matter of assessment of the suitability of candidates for a post, the Court should not substituteitsdecision for that of the Board of Directors. He drew our attention to the fact that the new Board of Directors, appointedinMay, 1993, had refrained from taking a decision in regard to this matter as this application was pendingbeforeCourt.He,therefore, urged that it be left open to the present Board to choose a suitable candidate,subjecttowhateverconditionsthe Court may impose.Although the Court has a wide discretion in terms of Article 126 (4) of the Constitution in granting relief andmakingsuchdirections as it may deem just and equitable, I do, in the circumstances of thiscase,refrainfrommakinganorderofappointment. Instead, I make order and direct that steps be taken forthwith by the 1st and 6th to 11thRespondentstofilltheresultingvacancyinaccordancewiththe1st Respondent'spolicy aforementioned and in terms of itspromotion/recruitment procedure (P 7), and that the appointment of the International Relations Manager be madewithinthreemonths of the date of this order.I further direct that the application already made by the Petitioner be taken as an application for thesaidpost,subjectto any additional material he may submit, and be considered on its meritsandthattheopinions/viewsexpressedbyanymember of the former Board of Directors or by any official of the 1st Respondent including the Consultant inthecourseofthese proceedings concerning the Petitioner be totally disregarded.Having regard to the wholly unwarranted discrimination and the needlessly offensive manner in which thefailuretoappointthe Petitioner was sought to be justified, I award the Petitioner a sum of Rs.50,000/- as a solatiumfortheviolationofhis fundamental rights guaranteed by Article 12 (1) of the Constitution, payable by the 1st Respondent.I further order that the 1st Respondent pay the Petitioner a sum of Rs. 5,000/- as costs.